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In re Estate of Cerrato Rivera

Court of Appeals of Wisconsin, District III

January 9, 2018

In re the Estate of Carlos Esterley Cerrato Rivera:
West Bend Mutual Insurance Company and Alpine Insulation, d/b/a A&B Drywall Rock Solid, Defendants-Respondents. Raoul R. Ehr, Special Administrator, Guinifer Lizeth Cerrato Nunez and Yuly Melissa Cerrato Nunez, Plaintiffs-Appellants,

         APPEAL from a judgment of the circuit court for Milwaukee County: WILLIAM SOSNAY, Judge.

          Before Stark, P. J., Hruz and Seidl, JJ.

          STARK, P.J.

         ¶1 This appeal requires us to address the following issue: can an employee of a temporary help agency who has been injured in the course of his or her employment and who has not made a worker's compensation claim bring a tort claim against his or her temporary employer? Based on the plain language of the relevant statutes, we conclude the answer to this question is yes.

         ¶2 As explained below, the exclusive remedy provision of the Worker's Compensation Act ("the Act"), WIS. STAT. § 102.03(2) (2015-16), [1] does not bar a temporary employee from bringing tort claims against his or her temporary employer. WISCONSIN STAT. § 102.29(6)(b)1., which specifically addresses tort claims by temporary employees against their temporary employers, bars such claims only where the temporary employee "makes a claim for compensation" under the Act. It therefore follows that a temporary employee who has not made a claim for compensation under the Act is permitted to pursue a tort claim against his or her temporary employer. Moreover, even if the employee at issue in this case is construed as a loaned employee, rather than a temporary employee, we still conclude the Act does not bar his estate's tort claims. We therefore reverse the circuit court's decision granting summary judgment to Alpine Insulation, the temporary/borrowing employer in this case, and its insurer, West Bend Mutual Insurance Company.


         ¶3 The following facts are undisputed. On August 21, 2014, Carlos Esterley Cerrato Rivera and two other individuals died in a single-vehicle accident. Rivera was survived by five children, two of whom were minors at the time of his death.

         ¶4 At the time of the accident, Rivera was a passenger in a vehicle owned by Alpine and insured by West Bend. The vehicle was traveling from one Alpine job site to another. Rivera was employed by Alex Drywall, which, in turn, had provided him to perform work for Alpine. Alpine paid Alex Drywall for Rivera's services, and in turn, Alex Drywall paid Rivera for his work. The vehicle's driver was a temporary employee of Alpine, which had retained him through JC Staffing, a temporary help agency. The driver was negligent in his operation of the vehicle, and his negligence was a cause of the accident.

         ¶5 In February 2016, Rivera's two minor children and Raoul Ehr, as special administrator of Rivera's estate, commenced the instant wrongful death lawsuit against Alpine and West Bend in Milwaukee County Circuit Court.[2] The Estate's complaint sought damages for Rivera's pain and suffering and for his minor children's loss of society, companionship, and support. The Estate has not filed a claim for worker's compensation under the Act, although it is undisputed the Estate has the right to do so.

         ¶6 Alpine and West Bend answered the Estate's complaint and later moved for summary judgment. In support of their motion, Alpine and West Bend argued Alex Drywall, Rivera's employer, was a temporary help agency. They asserted that, because Rivera was an employee of a temporary help agency, the Estate was prohibited from bringing a tort action against Alpine-an employer that compensated Alex Drywall for Rivera's services-under WIS. STAT. § 102.29(6)(b)1. The circuit court agreed and granted summary judgment in favor of Alpine and West Bend. The Estate now appeals.


         I. Standard of review

         ¶7 We independently review a grant of summary judgment, using the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI.App. 264, ¶6, 306 Wis.2d 513, 743 N.W.2d 843. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). Here, the material facts are undisputed, and the only issue on appeal is whether the Act prohibits the Estate from bringing tort claims against Alpine. "The interpretation and application of a statute to an undisputed set of facts are questions of law that we review independently." McNeil v. Hansen, 2007 WI 56, ¶7, 300 Wis.2d 358, 731 N.W.2d 273.

         ¶8 When interpreting a statute, our objective "is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110. Our analysis begins with the plain language of the statute. Id., ¶45. "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id. In addition, statutory language must be interpreted "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶46. Statutes should also be construed "so that no word or clause shall be rendered surplusage and every word if possible should be given effect." State v. Martin, 162 Wis.2d 883, 894, 470 N.W.2d 900 (1991) (quoting Donaldson v. State, 93 Wis.2d 306, 315, 286 N.W.2d 817 (1980)).

         ¶9 "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Kalal, 271 Wis.2d 633, ¶46 (quoting Bruno v. Milwaukee Cty., 2003 WI 28, ¶20, 260 Wis.2d 633, 660 N.W.2d 656). However, if the statute is ambiguous-that is, reasonably susceptible to more than one interpretation-we examine extrinsic sources, such as legislative history, to ascertain the legislature's intent. Id., ¶¶47, 50-51.

         II. The Act's ...

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